Dodd-Frank’s Anti-Retaliation Protections Apply Only to Whistleblowers Who Report to the SEC. Exposing Misconduct.

Dodd-Frank’s Anti-Retaliation Protections Apply Only to Whistleblowers Who Report to the SEC

February 23, 2018

In Digital Realty Trust, Inc. v. Somers, a 9-0 opinion by Justice Ginsburg issued February 21, 2018, the Supreme Court held that the anti-retaliation provisions of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act do not extend to employees who have reported internally but extend only to employees who have reported suspected securities law violations to the Securities and Exchange Commission. The Supreme Court’s decision reversed the Ninth Circuit, and resolved a longtime circuit split. The Fifth Circuit has held that employees must provide information to the SEC while the Ninth and Second Circuits held that reporting internally is enough for employees to qualify for Dodd-Frank Act’s anti-retaliation protections. (My analysis of the Fifth Circuit opinion, entitled “When is a ‘Whistleblower’ Not Really a ‘Whistleblower’?,” is available here and of the Second Circuit opinion, entitled “Second Circuit Rules Dodd-Frank Protects Whistleblowers Who Report Internally,” here.)

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